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Law in Conflict: the Technological Transformation of War and Its \\jciprod01\productn\N\NYI\51-3\NYI303.txt unknown Seq: 1 23-MAY-19 9:16 LAW IN CONFLICT THE TECHNOLOGICAL TRANSFORMATION OF WAR AND ITS CONSEQUENCES FOR THE INTERNATIONAL CRIMINAL COURT LINDSAY FREEMAN* I. INTRODUCTION .................................. 808 R II. UNDERSTANDING THE TECHNOLOGICAL TRANSFORMATION OF WAR ....................... 814 R A. Theoretical Frameworks........................ 817 R B. Characteristics of Twenty-first Century Conflict . 819 R C. The Nature of Technological Change ........... 823 R III. TECHNOLOGY IN CONFLICT....................... 827 R A. Rise of the Non-State Actors ................... 828 R B. Taking Humans out of the Loop ............... 836 R C. Information Warfare in the Digital Age ......... 838 R IV. LAW IN CONFLICT ............................... 845 R A. The Principle of Indistinction .................. 846 R B. Accountability in the Age of Intelligent Machines .................................... 851 R C. Remote Commanders and Command Responsibility ................................ 852 R V. TRUTH IN CONFLICT ............................. 855 R A. The Digitalization of Evidence ................. 858 R B. Extraterritorial Investigations .................. 860 R C. Modernizing International Criminal Procedure . 866 R VI. CONCLUSION .................................... 868 R * Senior Legal Researcher, Human Rights Center, UC Berkeley School of Law. Adv. LL.M. in Public International Law (Leiden University), J.D. (University of San Francisco School of Law), and B.A. in Political Science (Middlebury College); World Economic Forum Global Future Council on Human Rights and Technology fellow and member of the Technology Advi- sory Board for the Office of the Prosecutor of the International Criminal Court. The views expressed in this article are those of the author and do not reflect the views of any organization. The author thanks Dr. Joseph Powderly and Dr. Alexa Koenig for their guidance, mentorship, and invaluable feed- back and the NYU JILP team for their editorial support. 807 \\jciprod01\productn\N\NYI\51-3\NYI303.txt unknown Seq: 2 23-MAY-19 9:16 808 INTERNATIONAL LAW AND POLITICS [Vol. 51:807 Modern armed conflicts and military strategies have undergone dramatic shifts as a result of new technologies, and the next generation of innovations will have profound consequences for how wars are fought, where they are fought, and who fights them. This, in turn, will inevitably have a pronounced influence on the development of the laws of war and the justice mechanisms mandated with enforcing those laws. Therefore, as new strategies and dynamics of war emerge related to the use of new technologies, war crimes investigators and prosecutors must adapt in order to meet the goals of establishing the truth, protecting the historical record, and holding individuals accountable for grave violations of international law. This article examines the characteristics of contemporary armed conflicts related to the use of new technologies and asks how this technological transformation of warfare will affect the ability of the global community to reach the goals of international justice. First, it examines the development of the use of technology—what technologies are used, how they are used, and what impact they have on armed conflicts and military affairs generally. Second, it identifies the complex legal issues arising from the use of new technologies and advocates for needed revisions to the definitions of crimes and modes of liability. Finally, it looks at the impact of the technological transformation of warfare on the fact-finding process for international criminal investigators and recommends a modified approach to evidence and the rules of procedure. In sum, this article takes a big picture approach to examining a current revolution based on the complex interplay of technology, law, and investigations in armed conflicts, and uses this understanding to chart a new way forward for the International Criminal Court. I. INTRODUCTION As new technologies transform the character of war,1 in- novative combat strategies and changing dynamics between belligerents will inevitably affect the applicability of the ex- isting laws of war and the ways in which war crimes are investi- gated and prosecuted. Warfare in the twenty-first century dif- fers greatly from the wars waged during the nineteenth and twentieth centuries—a period during which international hu- manitarian law formed,2 paving the way for the creation of sev- 1. As David Jordan and his co-authors explain, “The character of war is a constantly changing phenomenon. It changes depending on upon a num- ber of factors, including the geography of the battlespace, the belligerents and their level of technological development, to name just three. In con- trast, the nature of war is unchanging across time and place.” DAVID JORDAN ET AL., UNDERSTANDING MODERN WARFARE 49 (2d ed. 2016). 2. As Professors Christine Chinkin and Mary Kaldor describe, “[l]egal steps were first undertaken to reduce war and subsequently to prohibit it after the cataclysm of World War I.” CHRISTINE CHINKIN & MARY KALDOR, INTERNATIONAL LAW AND NEW WARS 68 (2017). \\jciprod01\productn\N\NYI\51-3\NYI303.txt unknown Seq: 3 23-MAY-19 9:16 2019] LAW IN CONFLICT 809 eral international war crimes tribunals.3 The twenty-first cen- tury is witness to a rise in internal armed conflicts that are highly internationalized and which transcend borders, blur the line between civil war and civil unrest, and involve numer- ous fluid groups of non-state actors.4 These emerging trends can be attributed in large part to the advent and use of new technologies against the backdrop of a changing political land- scape. Complicating this picture, the increased importance of the cyber domain makes the informational dimension of war- fare often as significant as events on the physical battlefield.5 Further, the introduction of unmanned vehicles and autono- mous systems in military operations are gradually eliminating humans from the decision-making loop. This article examines the characteristics of contemporary armed conflicts related to the use of new technologies and asks how this technological transformation of warfare may impact the global community’s ability to reach the goals of international justice. Technology, science, and war have an entangled history, with the desire for military dominance driving technological innovation, and scientific discoveries propelling warfare to new, previously uncharted frontiers.6 Within the past century, technological advancements led to the exploitation of air, space, and cyberspace in military operations.7 Scholars often 3. These include the International Military Tribunal at Nuremberg (1945); the International Military Tribunal for the Far East (1946); the Inter- national Criminal Tribunal for the former Yugoslavia (1993); the Interna- tional Criminal Tribunal for Rwanda (1994); the International Criminal Court (1998); the Special Panel for Serious Crimes in East Timor (2000); the Special Court for Sierra Leone (2002); the Extraordinary Chambers in the Courts of Cambodia (2003); the Iraqi High Tribunal (2003); the Special Tribunal for Lebanon (2009); and the Kosovo Specialist Chambers and Spe- cialist Prosecutor’s Office (2017). 4. See SEBASTIAN VON EINSIEDEL, UNITED NATIONS UNIV. CTR. FOR POLICY RESEARCH, OCCASIONAL PAPER 10, CIVIL WAR TRENDS AND THE CHANGING NA- TURE OF ARMED CONFLICT (2017) at 2 and 4 (noting global trends in armed conflicts, particularly the rise in civil wars, the increase in conflict relapse rates, the growing number of terrorist and non-state groups, and the interna- tionalization of intrastate conflicts). 5. The United States military refers to cyberspace as the fifth domain of warfare. See SHANE HARRIS, @WAR: THE RISE OF THE MILITARY-INTERNET COM- PLEX xix (2014) 6. See generally MARTIN VAN CREVELD, TECHNOLOGY AND WAR: FROM 2000 B.C. TO THE PRESENT (1991). 7. JORDAN ET AL., supra note 1, at 53. \\jciprod01\productn\N\NYI\51-3\NYI303.txt unknown Seq: 4 23-MAY-19 9:16 810 INTERNATIONAL LAW AND POLITICS [Vol. 51:807 link fundamental shifts in the conduct of war, sometimes re- ferred to as revolutions in military affairs (RMAs),8 to the technological developments of the time. In BATTLEFIELD OF THE FUTURE, Jeffrey McKitrick and other scholars explain, “in- dustrialization revolutionized warfare through railroads, the telegraph, the steam engine, rifled guns, and ironclad ships,” followed in the interwar period by “blitzkrieg, carrier aviation, amphibious warfare, and strategic bombing.”9 In addition, some less obvious innovations—from the printing press to the internet—have comparably impacted the changing character of war. Therefore, just as the development of sophisticated military technology has undeniably impacted the evolution of armed conflicts, so too have advancements in civilian energy, transportation, and communications technologies. Modern armed conflicts, in particular, have changed dramatically as a result of new digital technologies and their exponentially rapid rate of advancement over the past two decades.10 How- ever, as P. W. Singer explains in WIRED FOR WAR, the law is not keeping pace with this exponentially rapid rate of technologi- cal change.11 Technology develops faster than the law.12 This is espe- cially true of international law. In contrast to the reciprocal relationship between war and technology, and the speed at which both develop, the laws of war progress slowly and some- what separately. There is a collective
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